Justia Public Benefits Opinion Summaries

Duchesneau served on active duty in the Army, July 1996 to January 1999. In 2000, a VA Regional Office granted service connection for her right shoulder bursitis with a 10 percent disability rating. In 2003 she sought an increased disability rating, but the RO denied her claim. The Board affirmed. The veterans' court rejected her claim for two separate disability ratings under a single diagnostic code, set aside the Board's decision as to a single appropriate disability rating under DC 5201 and remanded to the Board to clarify the precise extent of her right shoulder limitation. The Federal Circuit rejected an appeal for lack of jurisdiction, stating that the veterans' court decision was not a final judgment. View "Duchesneau v. Shinseki" on Justia Law

Morris served on active duty for two months in 1964. His entrance examination and examination upon separation revealed no psychiatric abnormality. In 1966 Morris sought disability compensation for a psychiatric disorder, claiming that in basic training, he had suffered abuse from his sergeant, which caused him to experience nervous breakdown. The VA Regional Office denied the claim. In 1986, the RO concluded that additional evidence did not constitute new and material evidence. Following another denial, Morris presented evidence that he had been diagnosed with schizophrenia and a VA physician's opinion that it had its onset during service. The Board denied the claim. On remand in 1992, the Board concluded that evidence supported the claim but that its 1988 decision was final. In 1993, the RO awarded service connection for schizophrenia effective from 1987. In 1996, the Board denied a claim that the award should be retroactive to 1966. The Veterans Court rejected an argument that the 1988 Board failed to apply correctly 38 U.S.C. 105(a), 1110, and 1111, noting no evidence that the Board incorrectly considered his condition a personality disorder. The Federal Circuit affirmed. Under 38 C.F.R. 3.303(c), personality disorders are not diseases or injuries within the meaning of 1110 and are not compensable. View "Morris v. Shinseki" on Justia Law

Petitioner served in the Army for about 30 months, 1981-1983 and suffered injury to her knees and wrist. The VA regional office assigned a 10 percent rating to her left wrist with an effective date of 1986. In 1987, her right arm was injured as a result of medical care she received from the VA. In 1990, her injury to right knee and shoulder were each rated at 20 percent and her left knee at 30 percent. In 1996, she was unable to continue working as a bookkeeper and brought a claim for total disability based on individual unemployability. The regional office rated her service-connected disabilities at 70 percent, but denied a total rating based on unemployability under 38 C.F.R. 4.16(a). The regional office and Board of Veterans’ Appeals rejected her 2004 application for review. The Secretary conceded that the regional office committed error by incorrectly computing petitioner’s rating. The Veterans Court found no “clear and unmistakeable error” and that the error was harmless because the RO had made an unemployability determination that satisfied the requirements for a 4.16(a) analysis. The Federal Circuit dismissed for lack of jurisdiction because there was no issue of the interpretation of 4.16(a)View "Githens-Bellas v. Shinseki" on Justia Law

Donnellan served in the National Guard from 1969 until 2000. In 1996, a portion of his sigmoid colon was removed as treatment for colon cancer. In March 1998, after diagnosis of acquired polyposis, he had a total colectomy. While on active duty for training in May-June 1998, he became ill and underwent emergency surgery to remove a portion of his small intestine because of a small bowel perforation. After surgery, his doctors treated a small bowel fistula. The DVA denied a service connection to ensuing complications. In 2007, the Board of Veterans’ Appeals denied benefits, finding by clear and unmistakable evidence that Donnellan’s disease and ensuing complications did not increase in severity beyond natural progression during his period of active duty for training. The Veterans Court remanded, holding that the statutory presumption of aggravation does not apply to an increase in the degree of a disability suffered by a member of the National Guard while on active duty for training who is not a veteran under 38 U.S.C. 101(2) and that his doctor’s medical opinion did not satisfy the Board’s instructions on remand. The Federal Circuit dismissed an appeal. The Veterans Court’s remand order is not a final decision. View "Donnellan v. Shinseki" on Justia Law

In 1992, at age 57, Navy veteran who served on active duty during the Korean Conflict began receiving pension benefits under 38 U.S.C. 1521(a) for non-service connected disabilities. He had a combined disability rating of 80% based on prostate cancer, osteoarthritis of both knees, glaucoma/cataracts, hypertension, hyperthyroidism, and major depressive disorder. The disabilities rendered him "permanently and totally disabled." In 2006, he applied for an enhanced pension under the special monthly rate (38 U.S.C. 1521(e)), seeking consideration for housebound status because he was older than 65 years of age and had a disability rating of more than 60%. The regional office denied the claim because he had received a pension under section 1521 before turning 65. The Board of Veterans’ Appeals denied an appeal. The Veterans Court reversed and remanded. The Federal Circuit reversed and remanded, overruling Veterans Court’s interpretation of 38 U.S.C. 1513(a) in Hartness v. Nicholson (2006). Veterans applying for special monthly pension benefits under section 1521(e) should be on equal footing regardless of when they apply for a pension, i.e., whether the veteran applies before or after turning 65 years old.View "Chandler v. Shinseki" on Justia Law

Federal employees are entitled up to 15 days each year of military leave to attend training as a member of a reserve of the armed forces or National Guard. 5 U.S.C. 6323(a)(1). The Federal Circuit held that federal agencies cannot charge military leave on non-workdays. Duncan worked as a civilian for the Air Force until his retirement in 2005. From 1980 to 1998, he was also in the Air Force Reserve and performed 12 days each year of active duty plus additional duty for training. In 2009, he filed a claim with the Merit Systems Protection Board, alleging that the Air Force had charged his leave on non-workdays in violation of the Uniformed Services Employment and Reemployment Rights Act of 1994, seeking compensation for six days. An Administrative Law Judge granted the request, finding Duncan's recollection credible. The Board reversed, holding that it requires more than personal recollection and reliance on military documents. The Federal Circuit affirmed. The record did not show that all corroborating evidence was unavailable. View "Duncan v. Dep't of the Air Force" on Justia Law

The veteran served in Vietnam in the 1960s. He was honorably discharged and received service connection compensation for arthritis and hearing loss. In 1993, he had a malignant melanoma surgically removed; it continued to spread and he died in 1994. The surviving widow filed an Application for Dependency and Indemnity Compensation alleging that her husband’s death was service connected due to exposure to Agent Orange and extensive sunlight while serving in Vietnam. The Regional Office denied the claim. In 2004, she filed the current claim and submitted an internet article discussing an Air Force study that found an elevated risk of melanoma in veterans who were exposed to Agent Orange. The Board reopened and remanded the claim. On remand, a VA medical examiner determined that it was "at least as likely as not" that the melanoma was causally related to active duty service. The RO again denied the claim.. The Board affirmed. The Veterans Court vacated and remanded. The Federal Circuit dismissed an appeal for lack of jurisdiction, finding that there was no final decision.View "Ebel v. Shinseki" on Justia Law

A widow alleged that her husband developed cancer due to exposure to radiation while he was serving on active duty. Based on regulations that presume causation for certain diseases, the Board of Veterans' Appeals awarded service connection with an effective date of 1988. The Board did not determine whether she established a direct service connection that was not based on the presumptions. The Veterans Court remanded for such findings. The Federal Circuit affirmed, rejecting the widow's argument that the evidence in the record supported reversal and an earlier effective date. View "Byron v. Shinseki" on Justia Law

In 2009, plaintiff applied for an IT specialist position with the Miami VA Healthcare System. He did not get the job and, after exhausting rights before the Department of Labor, filed an appeal, asserting that the VA violated his rights relating to veteran's preference. The AJ concluded that the Merit Systems Protection Board had no authority to review the merits of the VA’s non-selection of plaintiff. The Board agreed. The Federal Circuit vacated. There is no way to determine whether the Veterans' Preference Act (58 Stat. 390) has been violated without examining the grounds for non-selection. The Board has jurisdiction to determine whether the VA properly afforded plaintiff the right to compete for the job and properly determined, in accordance with 5 C.F.R. § 302.302(d), that he was not qualified for the position View "Lazaro v. Dep't of Veterans Affairs" on Justia Law

Organizations challenged a rule issued by the Secretary of Veterans Affairs (amending 38 C.F.R 3.304(f)) with respect to claims for service-connected disability benefits for post-traumatic stress disorder. The new rule: allows a veteran to establish PTSD without supporting evidence; applies the lower evidentiary standard only if a VA psychologist or psychiatrist, or one contracted with the VA, confirms the claimed-stressor supports the diagnosis; and defines the veteran’s "fear of hostile military or terrorist activity" as involving a response characterized by "a psychological or psycho-physiological state of fear, helplessness, or horror." The Federal Circuit upheld the rule as not violating the statutory requirement that the Secretary consider all medical evidence and give the benefit of the doubt to the claimant when there is an approximate balance of evidence. There is a rational basis for the distinction between private practitioners and VA associated practitioners. View "Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y Veterans Affairs." on Justia Law